Health Care Repeal

Tomorrow, oral argument will be held in the case Texas, et al. vs. United States, et al., which not only threatens protections for people with pre-existing conditions, but a whole host of provisions of tens of millions of Americans rely upon for their care and coverage. If the court rules in favor of the Republican states and the Trump administration, critical Affordable Care Act protections would vanish overnight, unleashing chaos in our entire health care system. Just see what the experts say.

Patient groups, physicians, and hospitals emphasize how much the lawsuit could threaten care for people across the country:

• American Public Health Association’s Executive Director, Dr. Georges Benjamin, Says the Lawsuit Could Be The Most Dangerous Effort To Destabilize The American Healthcare System Yet. “Overturning the ACA will result in a catastrophic loss of coverage for millions of Americans. According to a new analysis by the Urban Institute, if the ACA is invalidated, more than 17 million people would lose coverage in 2019. That would be a 50% increase in the number of uninsured in just one year, including 12 million people who receive insurance through the marketplaces created by the ACA and 2.3 million young adults who gained coverage through its expansion of dependent care. Striking down the ACA will jeopardize the healthcare of those who need it most. Nearly 12 million low-income Americans who were enrolled in Medicaid through the ACA would likely lose coverage…This lawsuit could be the most dangerous effort to destabilize the American healthcare system yet. That’s why the American Public Health Association has submitted friend-of-the-court briefs opposing this suit, along with many other health organizations, insurers, economists and members of the business community.” [Los Angeles Times, Benjamin, 9/4/18]          

• American Cancer Society, American Cancer Society Cancer Action Network, American Diabetes Association, American Heart Association, American Lung Association, and National Multiple Sclerosis Society: “Striking Down These Provisions Would Be Catastrophic And Have Dire Consequences For Many Patients With Serious Illnesses.” Invalidating the ACA in whole or in part “would be devastating for the millions of Americans who suffer from serious illness or have preexisting conditions and rely on those protections under current law to obtain life-saving health care. If either the plaintiffs’ or the administration’s position were adopted by the court, people with serious illness are likely to be denied coverage due to their preexisting conditions or charged such high premiums because of their health status that they will be unable to afford any coverage that may be offered. Without access to comprehensive coverage, patients will be forced to delay, skip, or forego care. Striking down these provisions would be catastrophic and have dire consequences for many patients with serious illnesses.” [American Cancer Society et. al, 6/14/18

• American Medical Association, The American Academy of Family Physicians, The American College of Physicians, The American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry: “​Invalidating The Guaranteed-issue And Community Rating Provisions—or The ​Entire A​CA—Would Have A Devastating Impact On Doctors, Patients, And The American Health Care System As A Whole.” “Congress declined to do what the Plaintiffs ask this Court to do for a reason: the consequences of repealing the ACA would be staggering…Plaintiffs’ proposed remedies . . . would strip health care from tens of millions of Americans who depend on the ACA; produce skyrocketing insurance costs; and sow chaos in the nation’s health care system​…The ACA’s ‘nationwide protections for Americans with pre-existing health conditions’ has played a ‘key role’ in allowing 3.6 million people to obtain affordable health insurance. Severing those vital insurance reforms would leave millions without much-needed insurance.” [AMA et. al, 6/14/18]

• American Hospital Association, Federation of American Hospitals, The Catholic Health Association of the United States, and Association of American Medical Colleges: “A judicial repeal would have severe consequences for America’s hospitals, which would be forced to shoulder the greater uncompensated-care burden that the ACA’s repeal would create.” The relief sought by Texas and its allies “would have devastating consequences, kicking millions of Americans off of coverage and inflicting on them all the harms that come with being uninsured. These harms would fall on the low-income families least able to cope with them. ​And a judicial repeal would have severe consequences for America’s hospitals, which would be forced to shoulder the greater uncompensated-care burden that the ACA’s repeal would create.” [American Hospital Association et. al, 6/14/18]

• Public Health Scholars and the American Public Health Association: “The Foreseeable Public Health Consequences Of The Injunction Are Nothing Short of Catastrophic.” “Without the ACA, the health of millions of Americans would be harmed. Consider the grim analyses of proposed legislation partially repealing the ACA: In 2017, the nonpartisan Congressional Budget Office (“CBO”) assessed the impact of a bill partially repealing the ACA and found (among other things) that it would, in “the first new plan year following enactment of the bill” alone, increase the number of uninsured Americans by 18 million. That number would grow to 27 million after the “year following the elimination of the Medicaid expansion,” and then to 32 million by 2026. Still more is at stake here: Unlike the injunctive relief plaintiffs seek, the bill analyzed by CBO would have staggered its partial repeal of the ACA to avoid catastrophic results. Here, plaintiffs ask the Court to eliminate, as preliminary injunctive relief, a complex statute in its eighth year of implementation—a statute whose repeal through democratic means has been attempted innumerable times but has never succeeded.” [Public Health Scholars et. al, 6/14/18]

• AARP: Before ACA’s Protections, Discrimination Against Those With Pre-Existing Conditions, Age Rating, And Annual And Lifetime Caps Made Accessing Health Care Out Of Reach For Older Adults. “Uninsured pre-Medicare adults faced nearly insurmountable challenges to securing insurance because they were denied coverage based on preexisting conditions or offered costly policies that excluded coverage for needed care. Even without preexisting conditions, insurance premiums for older adults were as much as 11 times greater than their younger counterparts solely based on their age. Even a healthy person who was age 50 to 64 with no preexisting conditions faced markedly higher insurance premium rates than a younger person. Age rating put the cost of insurance out of reach for many pre-Medicare adults. Annual and lifetime caps—which were easily exceeded by treatment for a single illness such as cancer, heart disease, or diabetes—meant that many older adults either went without treatment until they became eligible for Medicare or incurred financially ruinous medical debt.” [AARP, 6/14/18]

Health insurance companies warn that the lawsuit could lead to mass coverage losses:

• America’s Health Insurance Plans: “Abruptly threatening or even cutting off billions of federal dollars that allow individuals to purchase insurance and that fund benefits offered through Medicaid or Medicare would have devastating effects.”“The healthcare system, while constantly evolving, cannot pivot to a new (or, worse yet, non-existent) set of rules without consequences. Abruptly threatening or even cutting off billions of federal dollars that allow individuals to purchase insurance and that fund benefits offered through Medicaid or Medicare would have devastating effects.​ Enjoining enforcement of federal laws like the federally-facilitated marketplaces and the products sold on them would be similarly disruptive.” [AHIP, 6/14/18]

• The Ability Of Millions Of Low-Income, Medically Vulnerable People To Access Necessary Treatments Would Be Cast Into Doubt. “The Medicaid program would likewise experience significant disruptions​. Stopping the funding for individuals made newly eligible for Medicaid under the ACA would harm the 34 states that have chosen to expand their Medicaid programs and potentially disrupt healthcare coverage for the 12 million people added as a result of that expansion​…The coverage of millions of low-income and medically-vulnerable patients—and their ability to receive necessary treatments and prescription drugs—would be cast into doubt. At the same time, state Medicaid programs would see drug costs increase considerably for all enrollees (including children, disabled, and elderly) due to the loss of the ACA’s enhanced prescription drug rebates​.” [AHIP, 6/14/18]

Small businesses, economists, and the Service Employees International Union (SEIU) demonstrate how DOJ’s lawsuit would jeopardize Americans’ health while harming the economy:

• Small Business Majority Foundation: “Before the enactment of ACA, this linkage pressured individuals to seek out and then stay put in jobs that provided affordable health insurance—a phenomenon known as ‘job lock’—because people clung to jobs with affordable health coverage even when they might have otherwise chosen to start businesses or pursue more attractive job opportunities with growing small businesses.” Small business owners, their employees, and self-employed individuals have benefited significantly from the many different reforms enacted as part of the Affordable Care Act, especially the creation of the individual marketplaces with tax credits, the optional expansion of Medicaid, and small group market reforms. Millions more working Americans, who are self employed or employees of the Nation’s small businesses, now have health insurance that they would not have had without the Act. The harm they will suffer if the Act is enjoined is just one of many reasons why the public interest is not served by Plaintiffs’ sweeping requested injunction.” [Small Business Majority Foundation, 6/14/18]

• Service Employees International Union (SEIU): “A Decision Striking Down The ACA Not Only Would Strip Health Coverage And Protections From Nearly 30 Million People And Remove Quality Care Incentives For Providers But Also Would Have Catastrophic Economic Consequences.” “Loss of the ACA would cause an enormous surge in the number of uninsured Americans, which would in turn increase the burden of uncompensated medical care costs borne by hospitals and other medical care providers by an estimated $1 trillion between 2019 and 2028. The massive reduction in federal funding would lead to the loss of up to 2.6 million jobs. And because the health care sector accounts for such a large percentage of the overall U.S. economy, eliminating the ACA would result in a $2.6 trillion reduction in total business activity between 2019 and 2023.” [SEIU, 6/14/18]

• Linda Blumberg, Fellow At Urban Institute’s Health Policy Center, And Sherry Glied, Dean Of Public Service At New York University: Lawsuit Would “Damage A Broad Swath Of The American Economy.” “We are economists, so we cannot address the legal questions. But we know what would happen if the court eliminated the ACA’s protections for people with health problems or invalidated the law entirely. The Urban Institute estimates that 17.1 million more people would become uninsured in 2019, a 50 percent increase in the number of uninsured. A decision for the plaintiffs would go beyond coverage losses. The ACA is complex and touches virtually every area of health care. Consumers and providers have relied on it for over eight years. Invalidating the law would eliminate extensions of coverage for those with employer insurance or Medicare, including preventive services with no cost-sharing, dependent coverage for young adults, and closure of the Medicare ‘donut hole’ that lowers prescriptions costs for seniors. It would throw the Medicare payment system into chaos and would require states to change the systems they built for determining Medicaid eligibility. It would damage a broad swath of the American economy.” [Austin American-Statesman, 8/30/18]

Law professors and the American Medical Association question the legality of the Justice Department’s argument:

• Josh Blackman, Professor At South Texas College Of Law: Writing Off This Case Would Be A Mistake. “Writing off this case would be a mistake, warned Josh Blackman, a professor at South Texas College of Law and frequent commentator on the healthcare law. ‘If the history of the Affordable Care Act teaches us anything, it is that we should not dismiss legal challenges too quickly,’ he said.” [Los Angeles Times, 9/4/18]
• Law Professors From Both Sides Of The Aisle, Including Jonathan Adler, Ilya Somin, Nicholas Bagley, Abbe Gluck, and Kevin Walsh, Note That Despite Their Different Policy Perspectives, They Agree That DOJ’s Arguments About Severability Are Inconsistent With The Law. “[A] court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability. Yet that is what the plaintiff States and the United States invite this Court to do.​..This time-shifting of congressional intent misapplies severability doctrine. By expressly amending the statute in 2017 and setting the penalty at zero while not making other changes, Congress eliminated any need to examine earlier legislative findings or to theorize about what Congress would have wanted. Congress told us what it wanted through its 2017 legislative actions.” [Jonathan Adler et. al, 6/14/18]

• American Medical Association, The American Academy of Family Physicians, The American College of Physicians, The American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry: DOJ Seeks To “Change The Federal Government’s Health Care Policy Through The Courts.” “The plaintiffs do not seek redress for any real, concrete injury because they have suffered none. They simply seek to change the federal government’s health care policy through the courts, rather than through the legislature.” [AMA et. al, 6/14/18]